Abburi Krishna vs Thalla Kotaiah & Anr.

This Criminal Petition is filed by the petitioner/ accused to quash the order dated 10.04.2023 in Crl.M.P. No.118 of 2023 in C.C. No.11 of 2019 on the file of Judicial First Class Magistrate, Darsi, wherein dismissed the petition filed under Section 70 (2) Code of Criminal Procedure (hereinafter referred to as „Cr.P.C‟) to re-call non-bailable warrant, for not producing two sureties of Rs.20,000/- and for not depositing 1/4^th amount of the cheque.

As seen from the record, the petitioner borrowed an amount of Rs.3,50,000/- from the complainant, on different dates, to meet his family expenses and executed promissory notes on even dates agreeing to repay the same with interest at 24% per annum and after repeated demands, the petitioner issued a cheque bearing No.272464 dated 08.10.2018 drawn on Axis Bank, Ongole and when the same was presented, returned with an endorsement “payment stopped by the drawer” vide memo dated 23.10.2018, and thereafter, complainant issued legal notice dated 22.11.2018 to the accused and filed complaint under Section 138 of N.I Act vide C.C. No.11 of 2019 before the Judicial First Class Magistrate, Darsi. Since the petitioner refused to receive summons, the learned trail court issued NBW against the petitioner. The petitioner approached the trial Court by filing the petition vide Crl.M.P. No.118 of 2023 under Section 70 (2) Cr.P.C to re-call the non-bailable warrant. Having considered the request, while canceling the non-bailable warrant, the learned trial Court imposed condition to produce two sureties of Rs.20,000/- and directed to deposit 1/4^th of the cheque amount and posted to 10.04.2023. Since the petitioner has not complied with the said conditions, the trial Court dismissed the petition vide order dated 10.04.2023. Feeling aggrieved by the same, petitioner filed the instant Criminal Petition.

The grounds urged by the petitioner in this petition are, the petitioner has no knowledge about issuance of non-bailable warrant, he came to know the same through the advocate commissioner and then, he filed an application before the trial Court under Section 70 (2) Cr.P.C, the trial Court has no power to impose condition to deposit 20% of cheque and respondent No.1 did not file any application, examination of petitioner is not completed and trial Court failed to assign reasons.

Heard both sides. Perused the material available on record.

Learned counsel for the petitioner submitted that the trial Court has no authority to impose a condition to deposit 1/4^th of the cheque amount and without giving any opportunity to the petitioner and without assigning justifiable reasons, the learned trial Court imposed the said condition and it is nothing but punishment to the petitioner.

While submitting arguments, learned counsel for the respondent No.1 fairly conceded to relax the condition in respect of deposit of 20% of cheque amount so as to proceed further in the main case.

Admittedly, for the absence of the petitioner, learned trial Court issued non-bailable warrant on 29.11.2021 and since the same is not executed, trial Court appointed advocate commissioner to execute warrant and thereafter, petitioner appeared before the trial Court and filed Crl.M.P. No.118 of 2023 under Section 70 (2) Cr.P.C to cancel the non bailable warrant issued against him. While considering the said application, learned trial Court passed order thus:

On the next date of adjournment i.e., on 10.04.2023, since the conditions are not complied with, the trial Court dismissed the petition. As rightly argued by the learned counsel for the petitioner, the Court may order the drawer of the cheque to pay interim compensation to the complainant –

It is not the version of the respondent No.1 that he has filed any petition seeking interim compensation and during the course of arguments, fairly conceded to relax the condition in respect of deposit of 20% of cheque amount. As per Section 143-A of the Act, after examination of the petitioner, if he pleads not guilty only, the court may order for deposit of 20% of the cheque amount and that too, after assigning justifiable reasons.

As per Section 87 of Cr.P.C, the Court can issue warrant for a person‟s arrest or in addition to a summon and in such process, the learned trial Court issued NBW against the petitioner to secure his presence so as to proceed further. The petitioner made his appearance and filed petition under Section 70 (2) Cr.P.C. So, the case is at the initial stage of furnishing copies. Admittedly, the trial Court can impose reasonable condition to secure the presence of the petitioner and at the same time, the learned trial Court must not have imposed condition to deposit 20% of cheque amount, to cancel the non-bailable warrant. It is settled principle of law that while granting bail/ recalling NBW, the Court must not impose conditions by way of punishment and the conditions must be reasonable. Absolutely, no reasons are assigned by the trial Court imposing condition to deposit 1/4^th of the cheque amount to cancel the non-bailable warrant and as such, impugned order is liable to be set-aside.

In the result, and for the foregoing reasons, this Criminal Petition is partly allowed, quashing the order in Crl.M.P. No.118 of 2023 in C.C. No.11 of 2019 in respect of deposit of 20% of cheque amount and confirming the order in respect of execution of self bond for Rs.20,000/- with two sureties to the satisfaction of the learned Judicial Magistrate of First Class, Darsi, Prakasam District.

As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.